Citation Nr: 1517977
Decision Date: 04/27/15 Archive Date: 05/05/15
DOCKET NO. 13-25 176 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to accrued benefits.
REPRESENTATION
Appellant represented by: Robert Brown Jr., Attorney
ATTORNEY FOR THE BOARD
David Gratz, Counsel
INTRODUCTION
The Veteran served on active duty from October 1966 to September 1969, and from January 1991 to March 1991. The Veteran died in September 2000, and the appellant is the surviving spouse of the Veteran.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.
In September 2014, the appellant withdrew her request for a Board hearing.
FINDINGS OF FACT
1. The Veteran died in September 2000.
2. In a January 2011 decision, the Board granted entitlement to service connection for the cause of death of the Veteran, due to service-connected rheumatic heart disease.
3. No claims for VA benefits were pending and unadjudicated at the time of the Veteran's death.
CONCLUSION OF LAW
Entitlement to an award of accrued benefits is not warranted. 38 U.S.C.A. §§ 1110, 5103A, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.151, 3.152, 3.155, 3.159, 3.1000 (2014); Sabonis v. Brown, 6 Vet. App. 426 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The law in the case is dispositive and there is simply no basis for a legal entitlement to such benefits. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, there is no assistance that VA could possibly provide to the appellant to substantiate the claim.
Accrued benefits are "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ." 38 U.S.C.A. § 5121(a); 38 C.F.R. 3.1000(a). An "[a]pplication for accrued benefits must be filed within one year after the date of death." 38 C.F.R. § 3.1000(c). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. See 38 C.F.R. § 3.160(d); see also 38 C.F.R. §§ 20.1103, 20.1104.
Accrued benefits include those the Veteran was entitled to at the time of death under an existing rating or based on evidence in the file at the date of death. See 38 U.S.C.A. § 5121(a). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that for a surviving spouse to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. As there were no pending claims for VA benefits or any indication in the record of a desire to file a claim for such benefits at the time of the Veteran's death, there is no basis for a favorable disposition of the appeal. Consequently, the appellant's claim fails because of absence of legal merit or lack of entitlement under the law. Where, as here, the law is dispositive of the claim, the claim must be denied because of lack of legal merit or lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994).
ORDER
Entitlement to accrued benefits is denied.
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STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs